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Tam’s attorney asks DA to drop investigation

Submitted by on 1, July 27, 2010 – 4:50 am7 Comments

City Councilwoman Lena Tam’s attorney has asked the Alameda County District Attorney to close its inquiry into allegations that Tam leaked confidential information to SunCal and Alameda’s firefighters union and violated the state’s open meeting law without taking action against the city leader.

Tam’s attorney, John Keker, said another lawyer hired by the city to help investigate Tam’s alleged actions failed to provide evidence she committed criminal misconduct, the standard he said would be required to invoke grand jury removal proceedings against Tam.

Keker cast Tam’s actions as the diligent – and wholly legal – acts of a committed public servant, not those of someone acting to contravene the city’s best interests.

“We respectfully submit that the Letters present no evidence of wrongdoing by Councilmember Tam, much less a basis for the draconian remedy of removal from office. These Letters appear to result from political infighting at its worst – unleashing politically damaging and baseless demands for Section 3060 proceedings without even providing the Councilmember an advance opportunity to respond,” Keker wrote to assistant district attorneys Ann Diem and Lawrence Blazer.

Keker said Tam’s alleged disclosures didn’t violate the Brown Act because they didn’t come from a closed session and weren’t privileged communications. And he said Tam’s e-mails to fellow council members didn’t break public meeting rules because they were one-way communications that the law allows. And he said blind-copying other members of legislative bodies on e-mails is “a recommended practice for local legislators seeking to avoid Brown Act violations.”

Tam is accused of blind-copying City Councilwoman Marie Gilmore on e-mails she sent to other members of the council.

Michael Colantuono, who Interim City Manager Ann Marie Gallant and City Attorney Teresa Highsmith hired to investigate Tam, wrote Blazer on May 26 and Diem on July 2 with his investigative findings against Tam. Blazer directed a reporter to Diem, who did not return a call seeking comment Monday.

“Mr. Colantuono’s repeated omissions of important law and facts reflect the fact that these Letters are anything but the neutral evaluations they purport to be,” Keker wrote.


  • elliottg says:

    I’m not sure if Mr. Keker is misstating the law on purpose or the article is misrepresenting his letter, but criminal misconduct is not the standard. One doesn’t have to be a Brown Act expert or any kind of expert to know that. To convict, “beyond a reasonable doubt” will be the standard so maybe that is what Mr. Keker is referring to.

  • Kate Quick says:

    Here is in part what Mr. Keker said: “Contrary to the representations in the Letters, Section 3060 grand jury proceedings are appropriate only where ther is a violation of a penal statute – a principle of constitutional law set forth clearly in recent appellate authority that the Letters completely ignored. . . .the lettters present no evidence whatsoever that could be construed as a violation of a penal statute. For that reason alone, the Letters’ attempt to unseat this elected official under Section 3060 should be rejected.” He later says the civil allegations also fail, and gives point by point reasons that the information stated to be “priveleged” was not. It is interesting stuff to read.

  • ct says:

    “… [the] lawyer hired by the city … failed to provide evidence that [Tam] committed criminal misconduct, the standard that would be required *to invoke grand jury removal proceedings* against Tam.”

  • JH says:

    elliotg — John Keker is not mistating the law. He is referring to the standard for initiating grand jury proceedings, not the standard to convict a defendant at trial. John Keker is one of the most respected attorneys in the state. I have seen both Keker and Colantuono in action in court. I have read their briefs. Keker is by far the better lawyer. As a lawyer, I completely agree with Keker’s assessment of Mr. Colantuono’s legal and factual analysis. It’s unfortunate that the taxpayers funded such nonsense. By the way, I do not know Lena Tam and I do not necessarily agree with her views, but I do know a political hatchet job when I see it.

  • elliottg says:

    Mr. Keker is vigorously advocating for his client. In other words, he is lying.

  • elliottg says:

    JH, I don’t know who is the better attorney. I don’t know if Tam is guilty. I do know that if Keker said that referral to the Grand Jury requires proof of “criminal” conduct then he is wrong and (because he is such a good attorney)he knows he is bloviating. Now the article might be wrong or there may be some nuance, but I have not read the letter.

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